Labor & Employment Law Daily Dealership’s admission that pre-suit letter was ‘final straw’ in Black employee’s firing was direct evidence of retaliation
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Tuesday, October 13, 2020

Dealership’s admission that pre-suit letter was ‘final straw’ in Black employee’s firing was direct evidence of retaliation

By Kathleen Kapusta, J.D.

In addition, the employee’s racial harassment claim advanced despite the dealership’s assertion that a white sales associate believed the term “n***a” was a casual term of endearment in the Black community.

Despite a car dealership’s assertion that a white sales consultant used the term “n***a” as a “regular upbeat greeting for his buddies, homeboys, relatives, and friends,” and not in a discriminatory manner, a federal court in Michigan denied summary judgment against an African-American employee’s state-law and Title VII hostile work environment claims. Fact issues existed not only as to the frequency of his and the owner’s use of the term, but as to his use of “little mama” as well. However, the employee, who was fired the same day the owner received her pre-suit letter announcing her intent to sue for race discrimination, was entitled to summary judgment on her state-law retaliation claim (Noel v. CARite of Garden City, October 5, 2020, Roberts, V.).

During her five years as a sales consultant with the dealership, the employee claimed she experienced a culture tolerant of the term “n***a” and “n****r” and that several employees, including another sales consultant, used “n***a” frequently. Her coworker, she alleged, contended that the word was a casual term of endearment in the African-American community and regularly used it to greet other employees, friends, and even customers.

I can say whatever I want. In February 2018, after overhearing her coworker say “what’s up my n***a” while talking to the dealership’s owner and general manager, the employee confronted him about the word. In response, he purportedly told her “I can say whatever I want to say, N***a, N***a, N***a.” The next day, however, he received a written warning from the owner to stop using the term. The owner, in March, also announced a zero-tolerance policy for use of racially derogatory language. Nonetheless, the employee claimed, her coworker continued to use the epithet.

Terminated. The following month, the employee’s attorney sent a pre-suit letter to the dealership announcing her intent to sue for race discrimination. Although the letter urged the dealership to settle or face publication of the “scandalous” behavior during litigation, she sought a substantial amount of money. The same day the owner read the letter, he fired the employee. The letter, he claimed, was an “extortion” attempt and the employee was incompetent, unprofessional, a liar, negative, and not a team player.

Title VII retaliation. At issue in the employee’s Title VII retaliation claim was whether the dealership had 15 or more employees for the period in question so as to be an employer pursuant to Title VII. The employee produced a list of 16 employees for 2018 that also included employees from an affiliated dealership. However, she provided no authority to support her contention that employees from separate entitles could be combined for Title VII purposes. For its part, the dealership provided a list of 10-14 employees present by week from January 2017 through December 2019, which the employee disputed. Finding triable questions of fact regarding whether the dealership employed 15 or more employees, the court declined to address the merits of the employee’s Title VII retaliation claim.

ELCRA retaliation claim. As to her retaliation claim under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), which defines an employer as a person with one or more employees, the court found she engaged in reasonable opposition activity in presenting the pre-suit letter to the dealership. Although the dealership argued that the owner viewed the letter as an extortion attempt, the letter stated that the employee retained an attorney “to represent her in her claims of racial harassment, racially hostile work environment, race and gender discrimination” by the dealership. Further, the owner admitted he fired the employee the same day he received the letter because it was the “final straw.”

Direct evidence. In addition, the owner’s statements during his deposition, in which he admitted the letter was the final straw, it was one of the reasons he fired her, and he didn’t want someone who was suing him to be working for him, proved the letter was a significant factor in the termination decision, said the court, finding direct evidence of improper motive by the dealership.

And while the owner also testified that he had wanted to fire the employee for years due to her incompetency, lack of professionalism, lying, negativity, and not being a team player, but the general manager always stopped him because she was a top sales associate, the employee pointed out that she never received any disciplinary actions during her five years with the dealership. This lack of documentation, said the court, together with her proficiency at the job and the timing of her termination all suggested the dealership would not have fired the employee if she had not engaged in protected opposition activity.

Finding that the letter significantly factored into the owner’s decision to fire the employee and that it was direct evidence of unlawful retaliation, the court granted summary judgment to the employee on her state-law retaliation claim. Further, if she can show the dealership is an employer under Title VII, its findings, said the court, would apply with equal force to the employee’s Title VII retaliation claim.

Wrongful termination. As to her ELCRA wrongful termination claim, the court found that under the disparate treatment approach, the employee failed to identify a white saleswoman who was not fired for engaging in similar protected activity. Likewise, under the intentional discrimination approach, she failed to show intentional discrimination due to race. She had worked at the dealership for five years before her termination and was consistently a top sales consultant. “What shocked [the owner] and spurred him into action on April 12, 2018 was not the realization that [the employee] was African American; it was the realization that [she] planned to sue him,” the court pointed out, granting summary judgment against this claim as well as the employee’s Title VII wrongful termination claim.

Racial harassment. As to the employee’s Title VII and ELCRA racial harassment claims, the dealership argued that she did not report any alleged harassment to the dealership and that her coworker used the term “n***a” as an upbeat greeting and not in discriminatory fashion. The employee, however, claimed he used the term on multiple occasions, she didn’t complain to the owner because he too used the term, and her coworker also used the term “little mama” to refer to little black girls but not little white girls.

But even if the coworker considered the term “n***a” to be a “term of endearment for the entire Black community,” the employee clearly did not welcome its use and believed both it and “n****r” we equally derogatory, said the court, And while the dealership argued that she only overheard the comments, and thus was not the victim of racial harassment, the Sixth Circuit, noted the court, “has been abundantly clear that ‘the plaintiff need not be present at the time of the offensive conduct; instead, she or he can learn of the conduct second-hand.’” Accordingly, the court found the employee sufficiently demonstrated that she was subjected to unwelcome racial harassment based on her race.

Finding fact issues as to the frequency of both the coworker’s and owner’s use of the words “n****r” or “n***a” and the coworker’s use of the phrase “little mama,” the court denied summary judgment against this claim. Moreover, the court observed, at trial, the jury will first need to determine if the dealership is an employer under Title VII before it can reach the merits of her Title VII claim.

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